Speaking of Ethics: Qui Tam Relators' Counsel and Rule 4.2(b)

From Washington Lawyer, December 2004

By Ernest T. Lindberg

The ethics panel at a recent conference of qui tam relators’ counsel considered a lawyer’s duties under Rule 4.2 of the D.C. Rules of Professional Conduct when a relator (i.e., whistleblower) identifies to the government lawyers and investigators the name of her attorney and explains that the hospital where she is employed is billing Medicare for surgeries that are not being performed.

Inevitably, the relator is asked to identify people at the hospital who might be able to support her allegations and to identify the location and nature of relevant documents. The relator’s information, some of which was acquired by wearing a wire, and interviews of other hospital employees provide sufficient evidence, including a box of documents taken over the past few years, to conclude that at least some of the relator’s concerns are likely to be valid and that hospital management may be aware of the phantom surgeries and falsified documents to cover up false billings. Counsel for the hospital, after learning of the search warrant for the billing records, says that she represents not only the hospital but all current and former employees, and no one may interview them without her presence.

Since violation of any rule of professional conduct is misconduct subjecting the lawyer to discipline, careful scrutiny and compliance are in the lawyer’s best interest. See D.C. Rules of Prof’l Conduct R. 8.4(a); D.C. Ethics Ops. 285 (1998), 295 (2000). Fortunately, for the government lawyer and D.C. relators’ counsel, Rule 4.2 is significantly different from the American Bar Association (ABA) model rule.

D.C. Rule 4.2(b) provides:

During the course of representing a client, a lawyer may communicate about the subject of the representation with a nonparty employee of the opposing party without obtaining the consent of that party’s lawyer. However, prior to communicating with any such nonparty employee, a lawyer must disclose to such employee both the lawyer’s identity and the fact that the lawyer represents a party with a claim against the employee’s employer.

A “party” is identified in 4.2(c) as “any person, including an employee of a party organization, who has the authority to bind a party organization as to the representation to which the communication relates.” Further elaboration of who is a “party” is found in comment [3] to Rule 4.2, which cites D.C. Ethics Opinion 129 (1983) as continuing authority in interpreting that term. Although Opinion 129 considered DR 7-104, which is no longer the applicable rule, the analysis brought forward by comment [3] affirms Opinion 129’s conclusion limiting the determination of “party” to “any person who can bind the organization as to the litigation. The Rule does not bar contacts with employees of the organization who do not have such authority.”

ABA Model Rule 4.2 is captioned to address to “persons” rather than “parties,” and only in comment [4] considers parties. Consequently, the D.C. rule provides more latitude to relators’ counsel.

Rule 4.2 is also beneficial to government attorneys subject to the McDade Amendment, 28 U.S.C. § 530B, which requires government attorneys to obey the state and federal laws and rules of the “State where such attorney engages in that attorney’s duties. . . .”

D.C. Ethics Opinion 323 (2004), unlike the Oregon court decision in In re Gatti, 8 P.3d 966 (2000), overruled, Or. DR 1-102(D) & Or. Formal Op. 2003-173, provides that government attorneys “who act in a non-representational official capacity in a manner they reasonably believe to be authorized by law do not violate Rule 8.4 if, in the course of their employment, they make misrepresentations that are reasonably intended to further the conduct or their official duties.” See also Va. Ethics Op. 1765 (2003).

The issue of whether it is appropriate for a lawyer to have ex parte contact with a former employee of a party-opponent is not expressly addressed in Rule 4.2. D.C. Ethics Opinion 287 (1998) addressed this issue by concluding that

[a] lawyer may contact unrepresented former employees of a party-opponent without obtaining consent from that party irrespective of the position formerly held by the ex-employee in the opposing organization. Prior to any substantive communication, the lawyer must disclose to the former employee the lawyer’s identity and the fact that the lawyer represents a party adverse to the ex-employees former employer. During the communication the lawyer may not solicit privileged information of the party opponent.

In including former employees within the group accessible to relators’ and government counsel articulated in Opinion 287, the D.C. Bar Legal Ethics Committee first looked to the reasons for prohibiting contact, as presented in Opinion 129:

(1) the presumed imbalance of skill between a lawyer and a layman, giving one an unfair advantage over the other; (2) the risk that an uncounseled party will make admissions or concessions or reach judgments from which his lawyer could protect him; and (3) the risk that a lawyer might be compelled to become a witness in a case or forced to choose between advancing his client’s interests and not overreaching in communicating with an unprotected adverse part.

The committee, in Opinions 80 (1979) and 167 (1986), sought to balance the reasons for denying contact with the “policy that litigants should have access to all relevant, non-privileged information regarding a matter and, derivatively, lawyers should be allowed to find facts as quickly and inexpensively as possible.”

Further, the committee found that the burden on litigants of limiting access unreasonably exceeded the possible danger from ex parte contacts. The policies justifying the limitation of access to parties represented by counsel did not extend to former employees because “former employees, as a general rule, cannot bind the organization by decision making, by conduct, or by admission with respect to a pending or prospective matter.” Hence, the committee concluded, “Rule 4.2 does not prohibit ex parte contacts with these individuals.” Whatever information damaging to a former employer or former conduct that would create liability in the former employer is not sufficient “to bind the organization in the manner contemplated by Rule 4.2.”

The committee’s conclusion is that “lawyers may make ex parte contact. . . . As the ABA noted in Formal Opinion 95-396 (1995), Rule 4.2 is not designed to protect against disclosure of prejudicial facts. . . . [T]o forbid ex parte contacts with former employees would require parties to spend more time, money, and resources by utilizing formal discovery to obtain information that could have been obtained informally.” To ensure the concerns of Rule 4.2 are met, the lawyer must comply with the requirement of identifying at the outset that he or she represents an adverse party to the former employee’s former employer.

As for the documents obtained by the qui tam relator, see D.C. Ethics Op. 318 (2002) (disclosure of privileged material by third party).

Legal ethics counsel Ernest T. Lindberg and Lisa Weatherspoon are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at ethics@dcbar.org.

From the Editors: We recently discovered that significant portions of a number of “Speaking of Ethics” columns should have quoted or otherwise been attributed to the opinions of the D.C. Bar’s Legal Ethics Committee. Washington Lawyer apologizes to its readers for any confusion this oversight may have caused. The specific columns involved are being noted and corrected in the magazine’s online pages at www.dcbar.org.